The opinion of the court was delivered by: Paul L. Friedman, District Judge
On March 24, 1999, the United States Department of Commerce, National
Marine Fisheries Service ("NMFS") issued a final rule listing the chinook
salmon located in the Lower Columbia, Upper Willamette spring and Puget
Sound as threatened and the chinook salmon of the Upper Columbia spring
as endangered. See Endangered and Threatened Species; Threatened Status
for Three Chinook Salmon Evolutionarily Significant Units (ESUs) in
Washington and Oregon, and Endangered Status for One Chinook Salmon ESU
in Washington. 64 Fed. Reg. 140308-01 (Mar. 24, 1999). Plaintiffs have
filed suit challenging the listing decision and have set forth five
separate causes of action in their amended complaint.
Defendants began to compile the administrative record based on the
claims in plaintiffs' amended complaint. They represent that on October
22, 1999, they provided defendants with the administrative record.*fn2
After receiving the administrative record, plaintiffs served defendants
with two sets of document production requests ("RFPs"). Although
defendants have produced some documents, for the most part they have
refused to provide discovery to plaintiffs on the ground that this is an
administrative agency case that should be resolved on the basis of the
administrative record. Plaintiffs have filed a motion to compel the
production of documents responsive to 14 of its 16 RFPs. See Plaintiffs'
Motion to Compel Production of Documents ("Mot. to Compel"), at 2-13.
Defendants oppose the motion to compel and have filed a motion for a
II. MOTION TO COMPEL AND
MOTION FOR PROTECTIVE
Almost the entire history of this case has been spent litigating
discovery issues. Plaintiffs have filed two motions to compel (including
the one currently pending), a Rule 56(f) motion and a separate FOIA
action. The Court is troubled by the apparent failure of plaintiffs to
consult with defendants in an effort to resolve discovery issues without
involving the Court. Plaintiffs represent that they have consulted with
defendants as required by the applicable rules. See Rule 37(a)(2)(A),
Fed.R.Civ.P. (consultation before filing motion to compel); Rule 7.1(m),
Local Civ.R. (consultation required before filing any non-dispositive
motion). Defendants, however, explain that after their initial
discussions with plaintiffs, plaintiffs have not consulted with them
regarding the need to supplement or update discovery or the
administrative record. Nor have plaintiffs brought to their attention
records that plaintiffs believe should have been included in the
but were not.*fn3 Defendants represent that consultation between the
parties may have resolved these issues without the need for a motion to
compel. See Federal Defendants' Memorandum in Support of Motion for
Protective Order and in Opposition to Motion to Compel ("Mot. for
Protective Order & Opp.") at 27-29, 42-44. Although the Court could
deny the motion to compel discovery and grant the motion for a protective
order for failure to comply with the Federal and Local Rules, it instead
will consider the merits of the parties' respective positions.
In their motion to compel, plaintiffs fail to recognize the basic rule
that generally discovery is not permitted in Administrative Procedure Act
cases because a court's review of an agency's decision is confined to the
administrative record. See, e.g., Community for Creative Non-Violence v.
Lujan, 908 F.2d 992, 997 (D.C.Cir. 1990); Edison Elec. Inst. v. OSHA,
849 F.2d 611, 617-18 (D.C.Cir. 1988). "The administrative record includes
all materials "compiled' by the agency . . . that were before the agency
at the time the decision was made." James Madison Ltd. v. Ludwig,
82 F.3d 1085, 1095 (D.C.Cir. 1996) (internal quotation marks and
citations omitted); see Citizens to Preserve Overton Park v. Volpe,
401 U.S. 402, 419-20, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In certain
limited circumstances, a court may permit supplementation of the
administrative record when such supplementation is necessary to provide a
full explanation of the agency's decision.
See, e.g., James Madison Limited v. Ludwig, 82 F.3d at 1095; Esch v.
Yeutte, 876 F.2d 976, 991 (D.C.Cir. 1989); Walter O. Boswell Memorial
Hospital v. Heckler, 749 F.2d 788, 791-92 (D.C.Cir. 1984). A court also
may find it necessary in some cases to consider explanations regarding
the state of the original record and decision, although it may not
entertain post hoc rationalizations where no rationale was set forth
before. See Carlton v. Babbitt, 900 F. Supp. 526, 531 (D.D.C. 1995).
Finally, a court may permit discovery but only in two limited
circumstances: (1) when there is a "strong showing of bad faith or
improper behavior," or (2) when discovery provides "the only possibility
for effective judicial review and when there have been no contemporaneous
administrative findings." Community for Creative Non-Violence v. Lujan,
908 F.2d at 997 (citing Citizens to Preserve Overton Park v. Volpe, 401
U.S. at 420, 91 S.Ct. 814).
Plaintiffs argue strenuously that defendants cannot simply rely on what
has been produced in the administrative record as a basis for resisting
discovery.*fn4 The cases they cite, however, are inapposite because they
concern discovery in non-administrative review cases. In the
administrative law context, courts uniformly have held that discovery
typically is not permitted. See supra at 4-5. Furthermore, this case does
not present the type of situation that would permit plaintiffs to take
discovery outside of the administrative record. See Community for
Creative Non-Violence v. Lujan, 908 F.2d at 997-98.*fn5 Similarly, with
respect to plaintiffs'
requests for documents created after the agency made its listing decision
or documents that concern post-decisional events, it is established that
defendants are not required to include such documents in the
administrative record. See Florida Power & Light Co. v. Lorion,
470 U.S. 729, 733-34, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); IMS, P.C.
v. Alvarez, 129 F.3d 618. 623-24 (D.C.Cir. 1997).*fn6
Plaintiffs also contend that they are entitled to discovery because the
administrative record prepared by defendants does not include documents
relevant to other claims raised by the amended compliant. Their specific
grievance is that claims under the Magnuson-Stevens Act and the
Sustainable Fisheries Act have not been included in the administrative
record*fn7 Based on their examination of plaintiffs amended complaint,
however, defendants argue that the claim under these two statutes is
actually quite narrow and they have included in the record all the
materials relevant to this one claim. See Mot. for Protective Order
& Opp. at 23-25, 29-30, 40-11, 43-44. In response, plaintiffs fail to
clarify what they contend their Magnuson-Stevens Act and Sustainable
Fisheries Acts claims are and instead refer vaguely to their "other
claims" under these Act.*fn8 Because it is not clear what other claims,
if any, plaintiffs wish to bring or think they have brought under these
statutes, the Court agrees that it would be unduly burdensome for
defendants to search for, copy and produce all records based on
plaintiffs' speculative claims. See Mot. for Protective Order & Opp.,
Third Declaration of Samuel D. Rauch, III. Ex. 17, Declaration of William
Robinson, ¶¶ 2-14. Because plaintiffs have failed to show that they in
fact have "other claims" under the Magnuson-Stevens Act or Sustainable
Fisheries Act, or precisely what they are, the Court denies plaintiffs'
motion to compel and grants defendants' motion for a protective order.
Finally, plaintiffs contend that they are entitled to the raw genetic
data used in some of the studies relied upon by defendants when the
listing decision was issued. Plaintiffs' argument, however, misreads the
decision in Endangered Species Committee v. Babbitt, 852 F. Supp. 32
(D.D.C. 1994). In that case, Judge Sporkin acknowledged that an agency is
not normally obligated to make available the raw data upon which the
reports considered by the agency were based if the agency itself did not
rely on the raw data when it reached its decision. See id. at 36-37.
Under the facts of Judge Sporkin's case, however, disclosure was required
inasmuch as the agency had reason to doubt the validity of a study on
which it had relied because a different study conducted two years earlier
using the same data had reached an opposite conclusion. See id. at 37.
Under those unique circumstances, Judge Sporkin concluded that the agency
had improperly withheld the raw data from members of' the public who
wished to comment on the proposed rule. Plaintiffs have not identified
any facts in this case that make it the least bit similar to the
situation before Judge Sporkin, as defendants point out that they did not
rely on the raw data ...